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Juggling Figures, and Justice, in a Doctor’s Trial

On April 14, 2005, the day Dr. William E. Hurwitz was sentenced to 25 years in prison, Karen Tandy called a news conference to celebrate the sentence and reassure other doctors. Ms. Tandy, head of the Drug Enforcement Administration, held up a plastic bag containing 1,600 opioid pills.

“Dr. Hurwitz prescribed 1,600 pills to one person to take in a single day,” she announced. This bag showed that he was “no different from a cocaine or heroin dealer peddling poison on the street corner,” she said, and made it “immediately apparent” that he was not a legitimate doctor.

“To the million doctors who legitimately prescribe narcotics to relieve patients’ pain and suffering,” Ms. Tandy said, “you have nothing to fear from Dr. Hurwitz’s prosecution.”

Next week, Ms. Tandy will have another photo opportunity, when Dr. Hurwitz is again sentenced in federal court, after the reversal of his conviction and a retrial this year. But this time, Ms. Tandy may want to skip the show-and-tell.

Dr. Hurwitz was cleared of most of the charges on which he was previously convicted, including the one involving the patient who received the prescription brandished by Ms. Tandy. The defense successfully argued that the patient was not a drug dealer and that Dr. Hurwitz never intended to give him 1,600 pills a day — that number was the result of a clerical error, not a plot to sell drugs. None of the jurors I interviewed considered Dr. Hurwitz anything like a street drug dealer, and they were appalled to learn after the trial that he had already served more time in prison than some of his patients who were caught reselling the drugs.

The only lesson for doctors I can see in Ms. Tandy’s bag of pills is, “Be afraid.”

No matter what you have learned in medical school, if you are prescribing opioids in doses that seems high to narcotics agents and prosecutors, you are at risk of a trial. And once you enter the courtroom, anything can happen.

At the first trial, Dr. Hurwitz was convicted of writing prescriptions that caused bodily injury, crimes that carried a mandatory minimum sentence of 20 years. At the retrial, the judge dismissed the charges for the very good reason that there was no proof the prescriptions actually caused the injuries.

At the first trial, the 1,600-pill argument carried the day with the jury. The foreman cited that number in explaining to The Washington Post why, even though he was “not an expert,” he was sure Dr. Hurwitz was not a “legitimate” doctor, because the number of pills went “beyond the bounds of reason.” In Dr. Hurwitz’s retrial, the prosecution tried the same strategy by repeatedly mentioning the 1,600 pills and other high-dosage prescriptions. The defense presented reams of expert testimony that there was no recognized upper limit on the level of opioids that should be prescribed. Some chronic-pain patients need enormous amounts because they develop a tolerance.

Photo

Credit
Viktor Koen

One of those patients was Patrick Snowden, the man who was prescribed the 1,600 pills. His mother wrote Dr. Hurwitz a letter praising him for giving her son his life back by enabling him to deal with the pain of a foot injured so badly that he had undergone nine operations and been advised to amputate it.

There was no evidence that Mr. Snowden resold any of the pills prescribed by Dr. Hurwitz, including the famous 1,600 pills. According to the defense, that scary number was a one-time fluke resulting from a clerical error when Mr. Snowden was given two new prescriptions for pills of a lower strength because his pharmacy had run out of the usual pills. The defense maintained that Dr. Hurwitz never intended Mr. Snowden to take 1,600 pills in one day and that Mr. Snowden never did take them because he realized what his proper dosage was.

The prosecution fixated on the pill counts of other patients, too, often to baffling effect, because the only thing that seemed to matter was the number of pills, not their strength. When an F.B.I. agent, Aaron Weeter, prepared an elaborate chart listing the number of pills received by Dr. Hurwitz’s patients, he was questioned about its usefulness by Larry Robbins, a defense lawyer.

“Would you agree that, standing alone, we can learn nothing very important from the pill count alone?” Mr. Robbins asked.

Mr. Robbins tried working through the math with him. Wouldn’t two 40-milligram pills be no more potent than a single 80-milligram pill? But the agent stood by his pill-count charts.

After the trial, the jurors told me that the defense had persuaded them to ignore the pill counts. I suppose that this could be counted as a victory for science, but it is an isolated one, because the pill-count prosecution strategy has repeatedly worked in other cases. Richard Paey, a chronic-pain patient in Florida who uses a wheelchair, was sent to prison for drug trafficking after a prosecutor argued that he could not possibly have been taking 25 pills a day himself.

Most other doctors could not hope to do as well in court as Dr. Hurwitz, who had unusual advantages at his second trial thanks to his prominence and the outrage over his conviction. He was supported by some of the leading pain experts and received a pro bono defense from two top criminal lawyers in Washington who led a legal team with more than 20 members. Paying for a defense like his would probably cost at least $3 million, beyond the means of most doctors in drug cases, because their assets are normally seized long before trial.

Even though Dr. Hurwitz’s defense cleared him of most of the charges, the jurors still convicted him of drug trafficking in some cases because they decided that he had ignored signs that the patients were reselling the drugs. I think that the jurors wrongly interpreted the law and the facts of the case, but I can also understand why they had a hard time figuring out what constitutes legal medical practice.

They were asked to render verdicts on dozens of prescriptions given to 19 patients — the equivalent of 19 different malpractice cases involving the treatment of pain and addiction, two of the most controversial areas of medicine. The jurors did not have the time or the expertise to sort through all the complexities.

After the trial, when they learned more about the pain-medicine debate and found out that Dr. Hurwitz might still be sentenced to 10 or more years in prison, several jurors expressed regret to me. They said they hoped that he was sentenced to the two and a half years that he had already served.

Even if Dr. Hurwitz does walk free next week, I wouldn’t take much solace in his victory if I were a doctor treating pain patients. I wouldn’t feel safe until doctors’ prescribing practices are judged by state medical boards, as they were until the D.E.A. and federal prosecutors started using criminal courts to regulate medicine. The members of those state medical boards don’t always make the right judgment, but at least they know that there is more to their job than counting pills.

A version of this article appears in print on , on page F1 of the New York edition with the headline: Juggling Figures, and Justice, in a Doctor’s Trial. Order Reprints|Today's Paper|Subscribe